IMPORTANT POINT
A magistrate before whom an accused under N.D.P.S. Act is produced cannot extend the period of remand beyond 15 days and he is bound to forward the accused to the court of Sessions if a Special Court is not constituted.

ORDER

Pareed Pillay, J.- The first point to be answered is as to whether a Judicial Magistrate before whom an accused is produced on the allegation that he has committed an offence punishable under the Narcotic Drugs and Psychotropic Substances Act (for short "N.D.P.S. Act") can authorize his detention for a period exceeding 15 days. Section 36-A of the N.D.P.S. Act provides that notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)

(a) all offences under the Act shall be triable only by the Special Court constituted for the area in which the offence has been committed or where there are more Special Courts than one for such area, by such one of them as may be specified in this behalf by the Government;

(b) where a person accused of or suspected of the commission of an offence under the Act is forwarded to a Magistrate under sub-section (2) or sub-section (2-A) of section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), such Magistrate may authorize the detention of such person in such custody as he thinks fit for a period not exceeding fifteen days in the whole where such Magistrate is a Judicial Magistrate and seven days in the whole where such Magistrate is an Executive Magistrate.

The proviso envisages that where Magistrate considers when such person is forwarded to him or upon or at any time before the expiry of the period of detention authorized by him that the detention of such person is unnecessary, he shall order such person to be forwarded to the Special Court having jurisdiction. Contention that in certain cases detention of the accused may become necessary by the Magistrate before whom the accused has been produced and in such circumstances he can extend the remand for a period exceeding 15 days is not tenable as the Special Court to which the accused will have to be forwarded is clothed with ample powers to deal with any situation. Reference to Section 36-A(c) makes the position clear. It enables the Special Court to exercise, in relation to the person forwarded to it under Clause (b), the same power which a Magistrate having jurisdiction to try a case may exercise under Section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), in relation to a accused person in such case who has been forwarded to him under that section. Thus, Special court to which accused has been forwarded can very well extend the remand period to meet demand of particular situations. The Scheme of the section admits of no doubt with regard to the powers of the Special Court. A reading of Section 36A would show that the accused who has been produced before the Magistrate will have to be sent to the Special court and the Special court gets jurisdiction in the matter there after. It that be so, there is no necessity for the detention of the accused before the Magistrate beyond the maximum remand period of 15 days. In view of section 36A stipulating a period of 15 days for the remand and as the magistrate has to forward the accused to the Special court before the period of detention authorized by him and as the Special court gets the seizing over the matter, it cannot be said that the Magistrate can extend the period of remand in a case were the accused has been brought before him for offences under the N.D.P.S. Act.

2. The next point to be considered is as to whether a Magistrate is bound to forward the accused to the Special Court if one is constituted and to the Court of Sessions if a Special Court is not so constituted. This point is answered by a decision of this Court in State of Kerala v. Balakrishnan1. This Court held:

"36D is a transitional provision and it mandates that until a special court is constituted under Section 36 any offence committed under the Act shall be tried by a Court of Session. Power under Section 361) has been given notwithstanding anything contained in the Code. It may also be noticed that Section 4(2) of the Code specifically states that all offences under any law other